Disputes that arise from engineering and construction contracts often involve complex technical and legal issues. For purposes of claim identification, we can typically categorize these issues into 19 basic construction claim types that contractors may pursue for recovery of damages. This post is the first of a series discussing each of these 19 types.
The United States federal government administrative and court systems are at the forefront of construction case law. With growing frequency, state courts look to the federal system as a coherent source of decisions. As a result, the basic types of entitlement recognized at the federal level are acquiring nationwide acceptance at the state level. Owners, engineering firms, and contractors involved in private construction need to develop an understanding of federal case law because legal decisions commonly find a basis in the mountain of government cases dealing with similar issues.
Entitlement is the legal basis of a claim. Entitlement may be derived from contract language (for example, a changes clause) or the principles of tort law, which set forth an individual’s duties and responsibilities (for example, implied warranties).
In practice, a thorough understanding of construction contract entitlement is needed to identify project issues that justify a contractor’s recovery of increased performance time and cost. This understanding is also needed to analyze and prepare a claim. The claim identification process is not static, as a steady flow of new construction case law continues to modify entitlement theory.
U.S. federal and state courts recognize these 19 basic construction claim entitlements for a contractor’s recovery of damages:
- Acceleration
- Acts of God/Weather
- Cardinal change
- Constructive change
- Defective and deficient contract documents
- Delays
- Differing site conditions
- Directed change
- Disruption
- Implied warranty
- Impossibility of performance
- Maladministration
- Owner-furnished items
- Strikes
- Superior knowledge
- Suspension
- Termination
- Unjust enrichment
- Variations in quantities
Claim resolution requires a thorough understanding of these 19 types, and determining a contractor’s realistic amount of time and cost recovery requires properly calculating damages for each of these claim types. Finally, cause-effect analyses of project documentation, contract drawings and specifications, performance requirements, and schedule delays, disruptions, and impacts are vital to demonstrate the linkage of entitlement to damages.
Richard J. Long , P.E. , P.Eng. ,Andrew Avalon , P.E. , PSP
